January 17, 2014 2:20pm PT by Eriq Gardner
Gawker Beats Hulk Hogan: Appeals Court Reverses Sex Tape Injunction
Hulk Hogan's comeback in an ongoing $100 million lawsuit against Gawker has been cut down at the knees by a Florida appeals court.
To quickly recap what's happened until today, Gawker posted a one-minute excerpt of a 30-minute sex tape involving the former professional wrestler. Along with the posting came an essay by A.J. Daulerio about how "we love to watch famous people have sex."
Hogan, aghast, went to federal court alleging copyright infringement, invasion of privacy, publication of private facts, misappropriation of his publicity rights and infliction of emotional distress. But a judge there ruled that Gawker's publishing of the video excerpt was "in conjunction with the news reporting function" and that the "factual finding supports a colorable fair use defense."
But it wasn't a pin. Not yet.
Hogan, born Terry Bollea, was allowed to refile the case in a state court, where he found a favorable judge who ordered the video down. There wasn't much of an opinion explaining why, and Gawker editor John Cook blasted the judge's ruling as "grossly unconstitutional."
On Friday, Florida appeals judge Anthony Black agreed.
"Because the temporary injunction is an unconstitutional prior restraint under the First Amendment, we reverse."
The judge notes that Hogan enjoyed the spotlight as a professional wrestler and reality TV star, that he openly discussed an affair he had in his published autobiography and discussed his relationships in media outlets. The judge also says that other media outlets were commenting on the existence and dissemination of the sex tape.
"Despite Mr. Bollea's public persona, we do not suggest that every aspect of his private life is a subject of public concern," writes the judge. "However, the mere fact that the publication contains arguably inappropriate and otherwise sexually explicit content does not remove it from the realm of legitimate public interest. It is clear that as a result of the public controversy surrounding the affair and the Sex Tape, exacerbated in part by Mr. Bollea himself, the report and the related video excerpts address matters of public concern."
Hogan's arguments as to why it was not a matter of public concern pointed to a famous California case involving Bret Michaels, who wanted to prevent distributors from circulating a video of him having sex with Pamela Anderson.
"However, the court in Michaels I found the use of the sex tape to be purely commercial in nature," responds Judge Black. "Specifically, the copyrighted tape was sold via the Internet to paying subscribers, and the Internet company displayed short segments of the tape as a means of advertisement to increase the number of subscriptions. In contrast, Gawker Media has not attempted to sell the Sex Tape or any of the material creating the instant controversy, for that matter. Rather, Gawker Media reported on Mr. Bollea's extramarital affair and complementary thereto posted excerpts from the video."
Since the Hogan sex tape qualifies as a matter of public concern -- as funny as that might sound -- Hogan had a "heavy burden" to prevail over a temporary injunction that would serve as a prior restraint under the First Amendment. Unfortunately for him, he can't body slam the U.S. Constitution.